Excerpt:.....committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it should not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. , thus, if the court, assumes the offender less than 21 years of age found guilty, to be of good character and of sound physical and mental condition, and then, proceeds to find out the desirability of releasing him on probation or not, it can certainly refuse to release him on..........their cycles from the side of village padla and were near arjan nagar, kaithal, at about 7.30 p.m. amar singh appellant gave him a signal to stop. thambu ram pw 2 stopped his cycle and alighted from the same. thereupon, amar singh appellant gave a lathi blow to thambu ram on his left arm as also abused him. close-by hiding was pritam singh appellant who came there along with another, both armed with lathis. the other person gave a lathi blow on the right arm of thambu ram and then pritam singh appellant gave a lathi blow on his leg. thereupon, thambu ram fell down. raghbir and krishan, pws, witnessed the occurrence, a11 the three accused persons then left the scene of the occurrence giving threat to thambu ram that he dare not come to that side again. the pws took the injured in a.....

Judgment:

Madan Mohan Punchhi, J.

1. This is an appeal by two brothers Amar Singh aged 18 years and Pritam Singh aged 30 years, against their convictions under Section 333/34, Penal Code, recorded by Shri V.M. Jain, Additional Sessions Judge (III), Kurukshetra. whereunder each of them has been sentenced to undergo rigorous imprisonment for three years,

2. Briefly, the prosecution case was that Thambu Rarn PW 2 was a Forest Guard and. at the relevant time, was posted at village Gahri Beat falling in the Kaithal Range. On 19-9-1980 Thambu Ram PW 2, Raghbir PW 3 and Krishan were returning to Kaithal on their cycles from the side of village Padla and were near Arjan Nagar, Kaithal, at about 7.30 p.m. Amar Singh appellant gave him a signal to stop. Thambu Ram PW 2 stopped his cycle and alighted from the same. Thereupon, Amar Singh appellant gave a lathi blow to Thambu Ram on his left arm as also abused him. Close-by hiding was pritam Singh appellant who came there along with another, both armed with lathis. The other person gave a lathi blow on the right arm of Thambu Ram and then Pritam Singh appellant gave a lathi blow on his leg. Thereupon, Thambu Ram fell down. Raghbir and Krishan, PWs, witnessed the occurrence, A11 the three accused persons then left the scene of the occurrence giving threat to Thambu Ram that he dare not come to that side again. The PWs took the injured in a rikshaw to the hospital.

3. Thambu Ram PW 2 was medically examined by Dr. V. S. Daka PW 1 at 8.15 p.m. on 19-9-1980. He found on his person three injuries of the following description:

1 There was a swelling of upper l/3rd of right leg 3' below the right knee joint anteriorly size 6 cm x 6 cm.On this there was a contusion 4 cm x 6 cm anteriorly on the shin of the tibia. The creptius was present. The upper and lower fragments of the bone could be separated from each other. The underlying bone was fractured.

2. There was an abrasion 6 cm x l/2cm on the posterior aspect of the left forearm and upper l/3rd of the left arm was swollen all around.

3. There was a contusion 4 cm x 2 cm on the anterior aspect of right arm. Injury No. 1 was grievous. Injury No. 2 was kept under observation for X-ray but, it seems, that such an examination was not done. Therefore, injuries Nos. 2 and 3 were taken to be simple in nature.

4. Dr. V.S. Daka sent intimation to the police. ASI Om Prakash PW9 reached the hospital and recorded the statement of Thambu Ram. In the said statement, Thambu Ram denounced the two appellants as the culprits as also described the third one by description. The said person ultimately turned out to be third brother of the appellants, named, Zira who ultimately was sent to the Children Court. The motive for the crime, as stated therein, was that the cattle of Amar Singh appellant had trespassed into the forest area and destroyed the saplings whereupon a quarrel ensued between Amar Singh and Thambu Ram. This led to proceedings under Section 107/151, of Cr. P. C. being taken against Amar Singh, which, on the date of the occurrence, were pending.

5. The prosecution case was supported by Thambu Ram PW 2 and Raghbir PW 3. This Raghbir was said to be working as a labourer in the Forest Department and, on the date of the occurrence, was on duty with Thambu Ram PW as stated by Shri S.K. Wassan (PW 8), Forest Range Officer. Other evidence led by the prosecution was of a formal nature besides that of the Investigation and the medical evidence. The learned trial Judge, believing the ocular account, recorded the conviction of the appellants.

6. Shri Sarup Chand Goyal, learned Counsel for the appellants, has. in the first instance, argued that the occurrence took place in the dark hours of the evening and the victim could not identify the assailants. In the same breath, it was contended that Raghbir and Krishan (not examined) had not witnessed the occurrence and the appellants had been involved in the case on account of suspicion. It is not disputed that Thambu Ram PW 2 was working as a Forest Guard on the date of the occurrence. It is not unknown that people keep plying their cycles even in dark hours to come and go from cities. It stands proved from the statement of Mr. S. K. Wassan PW 8 that Raghbir and Krishan, PWs, were employed on daily wages in the forest on the day of the occurrence. Raghbir PW 3 categorically stated that he had been employed on daily wages in the forest and had worked with Thambu Ram PW 2 with whom he was returning towards Kaithal when the occurrence took place. Amar Singh appellant was no stranger to Thambu Ram PW. On the principle that if the assailant could identify his victim, the victim too could identify his assailant, it is unbelievable that Thambu Ram PW could not identify his assailants, especially when the weapons used on him were lathis. Significantly, Amar Singh appellant was accused of having stopped Thambu Ram injured in the first instance and then, when the latter had alighted from his cycle, giving him a lathi blow as also abusing him. In the course of events, there could be no mistaken identity of Amar Singh appellant. And, when he was joined by Pritam Singh, his brother, there could equally be no case of mistaken identity. It is nobody's case that Amar Singh or Pritam Singh were not known to Thambu Ram. Thus, I am of the considered view that Thambu Ram was able to identify his assailants being Amar Singh and Pritam Singh. The second limb of the argument, that the PWs had not witnessed the occurrence is also not convincing, for had the PWs not been present there, the injured could not have reached the hospital with promptitude so as to be with Dr. V. S. Daka at 8.10 p.m. The statement of Dr. Daka could not be doubted in any event. Thus, the presence of Raghbir PW 3 being established, as also the identity of the assailants, the appellants have rightly been held guilty of the crime.

7. The next question which crops up for consideration is about the offence committed by the appellants. It is worthy to recall that Amar Singh appellant, after stopping Thambu Ram PW, had caused him an injury on the left arm, which was found to be simple. The next sequence was the injury caused by the third person Zira on the right arm of Thambu Ram, which too was simple. The grievous injury on the right leg was ascribed to pritam Singh appellant. It is noteworthy that pritam Singh appellant was the last to cause such an injury. From such a sequence of events, it cannot be established beyond doubt that Amar Singh shared the common intention with his co-accused to cause a grievous hurt so as to attract Section 333, I. P. C. The act of Amar Singh appellant squarely falls under Section 332, I. P. C, for he voluntarily caused hurt to deter a public servant from his duty and Pritam Singh appellant voluntarily caused grievous hurt to deter a public servant from duty, which act fell within the ambit of Section 333, I. P. C. So the common intention of both was to cause voluntarily hurt to Thambu Ram in order to deter him from his duty. Thus, in the circumstances, it would be proper to maintain the conviction of Pritam Singh under Section 333, I. P. C, and recording that of Amar Singh under Section 332, Penal Code. There would be no need of recording a separate conviction for Pritam Singh appellant under Section 332/34, I. P. C.

8. Lastly, the question of sentence was mooted. So far as the sentence of Pritam Singh is concerned, the awarding of three years' rigorous imprisonment to him, in the circumstances of the case, is not excessive. The same is accordingly confirmed. So far as Amar Singh appellant is concerned, having regard to the circumstances of the case, a sentence of one year's rigorous imprisonment under Section 332, I. P. C, would meet the ends of justice. Ordered accordingly.

9. The learned Counsel urging for Amar Singh appellant employed Section 6 of the Probation of Offenders Act in impelling me not to send him to imprisonment, for he was a person under 21 years of age and required of me to call a report from the Probation Officer beforehand and consider that report. In order to appreciate that contention, let Section 6 of the said Act be taken note of:-

6 (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it should not be desirable to deal with him under Section 3 or Section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in Sub-section (1), the Court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.

It is pertinent to note that the satisfaction of the Court conceived of in Section 6(1) of the probation of Offenders Act is dependent on three circumstances (i) the circumstances of the case, (ii) the nature of the offence, and (iii) the character of the offender. The Court, on the aforesaid three particulars, can come to a conclusion that it would be desirable to deal with the offender under Section 3 or Section 4 of the aforesaid Act or conversely that it would not be so desirable. Sub-section (2) of Section 6 of the said Act then gives a pointer that, for the purpose of satisfying itself whether it would not be desirable to deal with the offender under Section 3 or Section 4 of the aforesaid Act, the Court shall call for a report from a Probation Officer and consider the report, if any, and any other information available to it, relating to the character and physical and mental condition of the offender. (Emphasis supplied). The report of the Probation Officer, or any other information available with the Court, can only relate to the character and physical and mental condition of the offender and can have no bearing on the circumstances of the case including the nature of the offence committed by the offender. An inbuilt safeguard is provided in this provision that when the Court is employing the third particular, i.e., the character of the offender, then before the Court forms its opinion adverse to the offender in that regard, it must seek a report, from a Probation Officer or get any other information available relating to the character and physical and mental condition of the offender. Such report or information has obviously a limited spread and cannot trespass over the other two particulars, namely, the circumstances of the case and the nature of the offence committed by the offender., Thus, if the Court, assumes the offender less than 21 years of age found guilty, to be of good character and of sound physical and mental condition, and then, proceeds to find out the desirability of releasing him on probation or not, it can certainly refuse to release him on probation having regard to the circumstances of the case including the nature of the offence. But, for taking such a recourse, it is required to record its reasons for doing so.

10. The claim of the learned Counsel for Amar Singh appellant that I must send the case for a report from the Probation Officer, is baseless for the view of the law I have taken heretofore. The passing of sentence of imprisonment on Amar Singh appellant makes it incumbent on me to record reasons for doing so. And my reasons are that the offence committed by him was to deter a public servant from his duty, to put him to terror when he was not personally involved with the accused persons. A public servant is a servant of the society and needs social protection so that, he is not demoralized in the performance of his duty. Taking a lenient view in such like matters would tilt the social balance, for public servants must be allowed to serve free from fright. The nature of the offence and the manner in which it was committed left no manner of doubt that it was a calculated affair to demoralize and frighten the public servant. For these reasons, the sentence of imprisonment alone would meet the ends of justice and not release on...probation as pressed on behalf of Amar Singh appellant.

11. For the foregoing reasons, the appeal of Pritam Singh is dismissed and that of Amar Singh is partially allowed to the extent afore-indicated.